The chief justice’s canny move to uphold the Affordable Care Act while gutting the Commerce Clause.
There were two battles being fought in the Supreme Court over the Affordable Care Act. Chief Justice John Roberts—and Justice Anthony Kennedy—delivered victory to the right in the one that mattered.
Yes, Roberts voted to uphold the individual mandate, joining the court's liberal wing to give President Obama a 5-4 victory on his signature piece of legislation. Right-wing partisans are crying treason; left-wing partisans saw their predictions of a bitter, party-line defeat undone.
But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress' regulatory powers under the Commerce Clause.
By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law—while joining the Republican wing to gut the Commerce Clause (and push back against the necessary-and-proper clause as well).Here's the Chief Justice's opinion (italics in original):
Construing the Commerce Clause to permit Congress to regulate individuals preciselybecause they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
Read the rest of this article at the Slate.com
What in the Hell is he talking about? A narrow partisan looking victory would have been a whole lot better than a narrow partisan looking defeat. The "compromise" argument ... and things will get better after we die and the federal government goes to Heaven stuff ... has gotten pretty damn old.
ReplyDeleteRoberts is taking aim at the Commerce Clause of the Constitution. By making this decision he is opening the door up for cases that will directly challenge the power of Congress over the American people. They have opened up the Commerce Clause as a way to control the people and their behavior and now he has given the opportunity for a direct attack on Congress.
ReplyDeleteHow has he even done that? The argument made is that granting sweeping new powers to Congress will lead to limiting them. How? By really, really, really ticking everyone off? How's that supposed to help. Everybody's already really, really, really ticked off. It's not stopping the USSC from continuing to grant new powers to Congress.
DeleteHere is a passage from his opinion:
DeleteConstruing the Commerce Clause to permit Congress to regulate individuals preciselybecause they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.”
They're regulating what people don't do by taxing them for not doing it ... simply replacing free will with "here, we'll do it for you, but you still have to pay for it." Calling this a victory because it wasn't added to the long list of misuses of the Commerce Clause doesn't make any sense. It has done nothing to curtail misuse of the Commerce Clause and nothing in that direction will come of it. This is considered by the Court to be an absolutely new question, arising in no previous misuse of the Commerce Clause. So it offers no new point of challenge for anything that's already been done, nor does it curtail continued misuse along the same lines. It doesn't even forbid federal regulation of individuals for non-activity. Just the opposite. They've said that it's ok so long as they call it a tax. Maybe someone should shoot him and plead that it's ok because at the time he said the gun was a tulip.
Delete